ISLAMABAD: The Islamabad High Court (IHC) in its detailed version of its June 11 short order has stated that former president General (retd) Pervez Musharraf had no role in the detention of over 60 judges of the superior courts in 2007.
“There is nothing on record to connect the accused/petitioner (Gen Musharraf) with the alleged offence (detention of judges). There are only statements of some lawyers, but all those statements are based on allegations and cannot be considered as evidence,” an IHC division bench has said in its order that accepted a plea for post-arrest bail filed by Gen Musharraf in the judges’ detention case.
The “admitted position in the present case is that FIR was registered under section 344 of the criminal procedure code (CrPC), which is a bailable offence. In case of bailable offence, the accused is entitled to the concession of bail as a matter of right. Section 7 of the Anti- Terrorism Act (ATA) was afterwards added under the orders of an IHC judge,” the bench further said.
Muhammad Aslam Ghumman, the complainant, on Monday challenged the IHC order in the Supreme Court.
A division bench, comprising Justice Riaz Ahmad Khan and Justice Noor-ul-Haq Qureshi of the IHC, had granted post-arrest bail to Gen Musharraf on June 11 against surety bonds of Rs500,000.
An anti-terrorism court of Islamabad had rejected Pervez Musharraf’s bail plea on May 22 on the ground that since the appellant was a proclaimed offender, he was not entitled to any concession.
About the “proclaimed offender” observation, the IHC division bench noted: “As far as abscondance is concerned, admittedly the accused/petitioner had gone abroad with the consent and knowledge of the then government and during that period he was not declared as absconder by any court.
“Even otherwise, if the accused/petitioner is entitled to the concession of bail, mere abscondance would not be sufficient for refusal of the same, particularly, when he voluntarily surrendered himself before the court while seeking pre-arrest bail. Abscondance by itself is not the blind rod to kill each and every right of the accused.”
Regarding allegations against the former president in the FIR, the IHC bench said: “On the basis of contents of FIR, it can be said that the President of Pakistan had acted in an unconstitutional way, but it cannot be said that he has issued orders regarding illegal confinement of the honourable judges or their families. “It is yet to be proved that it was due to the orders of the accused/petitioner that honourable judges were kept in illegal confinement and on that score, the case of the accused/petitioner is one of further inquiry.”
Amir Nadeem, a special public prosecutor, opposed bail for Pervez Musharraf, contending that after proclamation of emergency by the former president on Nov 3, 2007, judges of the Supreme Court and high courts were kept in unlawful confinement with their families for over five months. The judges were restrained from performing their judicial functions and barbed wires were installed around their houses, the prosecutor added. It was after a new government took over in 2008 that Prime Minister Yousuf Raza Gilani, in the first session of the National Assembly, issued an order for the release of judges, he recalled.
The counsel for Pervez Musharraf argued that the case was registered under section 344 PPC, which was a bailable offence. The counsel further contended that Justice Shaukat Aziz Siddiqui of the Islamabad High Court had erred by adding section 7 of the Anti-Terrorism Act (ATA) to the FIR. The prosecution had not even sought it, Mr Nadeem argued.
